Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Tuesday, January 31, 2017

As a general rule, New York's Used Car Lemon Law provides a legal remedy for buyers or lessees of
used cars that turn out to be lemons. The law requires dealers to give
you a written warranty. Under this warranty, a dealer must repair, free
of charge, any defects in covered parts or, at the dealer's option,
reimburse you for the reasonable costs of such repairs. If the dealer is
unable to repair the car after a reasonable number of attempts, you are
entitled to a full refund of the purchase price. No used car covered by
this law can be sold by a dealer "as is."

Monday, January 30, 2017

The Used Car Rule, formally known as the Used Motor Vehicle Trade Regulation Rule, has been in effect since 1985. It requires car dealers to display a window sticker, known as a Buyers Guide, on the used cars they offer for sale. The Buyers Guide discloses whether the dealer offers a warranty and, if so, its terms and conditions, including the duration of the coverage, the percentage of total repair costs the dealer will pay, and which vehicle systems the warranty covers. In states that do not permit sales of used cars “as is,” or without warranties, dealers must display an alternative version of the Buyers Guide.

Friday, January 27, 2017

Under DRL 236-B, the duration of post-divorce maintenance can be determined by an advisory durational formula directly linked to the "length of marriage" which is defined as running
from the date of marriage until the date of commencement of the divorce
action. But what if the couple have been living jointly for a considerable length of time but only married for several years? That issue was somewhat faced in KAPROV v. STALINSKY, 2016 NY Slip Op 8509 - NY: Appellate Div., 2nd Dept. 2016 where the couple were married in 1998 but have lived together prior thereto for around 14 years:

"A party's maintenance obligation is retroactive to the date the application for maintenance was first made (see
Domestic Relations Law § 236 [B][6][a]). However, the party is also
entitled to a credit for any amount of temporary maintenance . . .
already paid" (Huffman v Huffman, 84 AD3d 875, 876).
Here, in arguing that the maintenance award is out of proportion to the
duration of the marriage, the husband fails to recognize that, pursuant
to the version of Domestic Relations Law § 236(B)(6)(a) in effect at
the time of the commencement of this action, one of the factors a court
should take into account in deciding the amount and duration of a
maintenance award is "the existence and duration of a pre-marital joint
household" (Domestic Relations Law § 236 [B][6][a][6]). The wife
testified that the couple lived together from 1984 to 2010,
approximately 26 years. Thus, an 11-year award of maintenance is not out
of proportion with the duration of the joint household. "The overriding
purpose of a maintenance award is to give the spouse economic
independence, and it should be awarded for a duration that would provide
the recipient with enough time to become self-supporting'" (Groesbeck v Groesbeck, 51 AD3d 722, quoting Sirgant v Sirgant, 43 AD3d 1034, 1035).
"The amount and duration of maintenance is committed to the sound
discretion of the trial court, and each case is to be decided on its own
unique facts" (Divan v Divan, 135 AD3d 807, 809; see Lamparillo v Lamparillo, 130 AD3d 580, 581; Heydt-Benjamin v Heydt-Benjamin, 127 AD3d 814, 815).
The maintenance award was appropriate for the wife to become
self-supporting given the factors involved, including the duration of
the pre-marital joint household, as well as the wife's age, absence from
the workforce, reduced earning capacity, and limited education (see Domestic Relations Law § 236[B][6][a])."

NOTE - Even under the new guidelines, DRL 236 (B) (g) (e) provides: "(1) The court shall order the post-divorce maintenance guideline
obligation up to the income cap in accordance with paragraph c of this
subdivision, unless the court finds that the post-divorce maintenance
guideline obligation is unjust or inappropriate, which finding shall be
based upon consideration of any one or more of the following factors,
and adjusts the post-divorce maintenance guideline obligation
accordingly based upon such consideration:... (f) the existence and duration of a pre-marital joint household or a
pre-divorce separate household;"

Thursday, January 26, 2017

Around this time last year, an article was published in the Journal of Addiction Medicine regarding a study designed "to measure the prevalence of substance use and mental health concerns among licensed attorneys, their awareness and utilization of treatment services, and what, if any, barriers exist between them and the services they may need."

Wednesday, January 25, 2017

"It is well settled that a mere lack of certificate of occupancy for
the use contemplated by a lease agreement does not absolve a tenant from
its obligation to pay rent and justify abandonment of the demised
premises, nor does the lack of conforming certificate of occupancy alone
cause the lease to be void for illegality or result in a failure of
consideration (see 56-70 58th St. Holding Corp. v Fedders-Quigan Corp., 5 NY2d 557 [1959]; Jordache Enters. v Gettinger Assoc., 176 AD2d 616 [1st Dept 1991]; see also Silver v Moe's Pizza, 121 AD2d 376 [2d Dept 1986]; Cutler-Hammer, Inc. v One Lincoln Assoc., 79 AD2d 512 [1st Dept 1980]; Shawkat v Malak, 38 Misc 3d 52, 54
[NY App Term 2013]). The cases are also legion in which the courts held
that even if the certificate of occupancy and zoning regulations
preclude the tenant from using the premises for the purpose specified in
the lease, this does not absolve the tenant of its obligation to pay
rent for the period of time when the tenant has occupied the premises,
including where the landlord made no representation concerning the
certificate of occupancy for the intended use under the lease (see e.g. Phillips & Huyler Assoc. v Flynn, 225 AD2d 475 [1st Dept 1996]; Only Props., LLC v Cavlak, 30 Misc 3d 129[A], 2010 NY Slip Op 52300[U] [NY Sup App Term 2010]; All Metro Corp. v Fit Laundromat,
13 Misc 3d 131[A], 2006 NY Slip Op 51858[U] [NY Sup Ct App Term 2006]).
Therefore, the Court finds that plaintiff's argument that the lease is
illegal for want of a conforming certificate of occupancy must fail.
Plaintiff's argument regarding the failure of consideration is also
unavailing for the reasons stated below.

Plaintiff asserts that there exists no support in the documentary
evidence submitted which placed on plaintiff the obligation to take
affirmative steps to revise or alter the certificate of occupancy. In
response, defendants point out to paragraph 57(D) of the lease and the
2009 Order. In the 2009 Order, the Court already determined[1] that paragraph 57(D)[2]
places the responsibility on plaintiff to seek a change of the
certificate of occupancy for the demised premises, which is part of the
certificate of occupancy for the entire building (Sava Affirm., exhibit
J).

Notwithstanding the foregoing, plaintiff avers that nowhere in the
lease is an affirmative obligation placed on plaintiff to procure a
certificate of occupancy. Plaintiff argues further that to the extent
that any ambiguity as to the meaning of the lease provisions can be
found, such ambiguity must be resolved against the landlord, who drafted
the lease. These arguments are defeated by the plain language of
paragraph 65 of the lease agreement, which provides that "[the] Lease
shall be deemed to have been jointly prepared by both the Landlord and
Tenant and any ambiguities or uncertainties herein shall not be
construed for or against either of them" (Sava Affirm., exhibit R, at
page 18 of 21) (see also Madison Ave. Leasehold, LLC v Madison Bentley Assoc. LLC, 8 NY3d 59, 66 [2006]
[a commercial lease should be enforced according to its terms when
parties set down their agreement in a clear, complete document and
extrinsic and parol evidence is not admissible to create an ambiguity]; Farrell Lines v City of New York, 30 NY2d 76, 165 [1972]
["(a)n agreement of lease possesses no peculiar sancity requiring the
application of rules of construction different from those applicable to
an ordinary contract"] [internal quotes omitted]).

Furthermore, defendants made no covenant in the lease agreement to
procure a conforming certificate of occupancy, or obtain a zoning
variance, and plaintiff enjoyed undisturbed right to possession of the
demised premises (see Silver, 121 AD2d at 377-378, citing 56-70 58th St. Holding Corp. v Fedders-Quigan Corp., 5 NY2d 557 [1959]; cf. Multiple Dwelling Law § 302[1][b]; Kosher Konvenience, Inc. v Ferguson Realty Corp., 171 AD2d 650
[2d Dept 1991]). Moreover, the terms of the lease do not condition
plaintiff's promise to pay the rent on either explicit or implied
covenant that defendants have a proper certificate of occupancy for the
demised premises (see Raner v Godberg, 244 NY 438 [1927]).
In the 2009 Order, this Court held that the lease clearly delivered the
premises in "as is" condition and paragraph 57(C) of the lease, should
have placed plaintiff on notice to check the certificate of occupancy,
and applicable laws, codes, and zoning regulations (Sava Affirm.,
exhibit J, at page 3).

Paragraph 57(C) provides that:

Landlord makes no representations that the use to be made of
the Demised Premises, as specified herein, is consistent with permitted
uses under the existing certificate of occupancy issue[d] for the
Building. In the event that such use is inconsistent with said
certificate of occupancy and further, that the Department of Buildings
or other governmental agency having jurisdiction, issues a violation
based on such inconsistent use, this Lease, shall be terminable by
Landlord in accordance with the provisions for notice set forth herein,
on thirty (30) days' prior written notice to Tenant (Sava Affirm.,
exhibit R, at page 12 of 21).

As defendants correctly contend, paragraph 57(C) of the lease
contains disclaimer of warranty that the contracted for use of the
premises, as strictly specified in the lease, is consistent with the
permitted uses under the existing certificate of occupancy for the
demised premises (see Sava Affirm., exhibit R, at page 12 of 21).
Based on this language of the lease, defendants argue, that plaintiff's
claim of fraud and misrepresentation is deficient and cannot sustain
the cause of action for rescission. Once again, in the 2009 Order, this
Court found that the documentary evidence conclusively established a
defense, as a matter of law, to plaintiff's claim that the landlord
breached an alleged promise that the premises may be legally used and
occupied as a commercial space, and to plaintiff's claim that defendants
falsely represented that the premises could be used for commercial
purpose (Sava Affirm., exhibit R, at page 3). "Such a specific
disclaimer destroys the allegations in plaintiff's complaint that the
agreement was executed in reliance upon these contrary oral
representations" (Danann Realty Corp. v Harris, 5 NY2d 317, 320-321 [1951]).

Friday, January 20, 2017

The Defense Manpower Data Center's (DMDC) Military Verification service can be used to verify if someone is currently serving in the military.

Information needed includes the Social Security Number and other personal information and the service will indicate that the Department either does not possess information regarding the individual or that the individual is in the military (in a signed printable letter format containing the Department of Defense seal).

In Dobkin v. Chapman, the Court of Appeals noted that "[d]ue
process is not, however, a mechanical formula or a rigid set of rules"
and that "in modern jurisprudence, the term has come to represent a
realistic and reasonable evaluation of the respective interests of
plaintiffs, defendants and the state under the circumstances of the
particular case" (21 NYS2d 490, 502, 236 NE2d 451 [1968]). The Court of
Appeals continued in Dobkin that "[o]ur law has long been
comfortable with many situations in which it was evident, as a practical
matter, that parties to whom notice was ostensibly addressed would
never in fact receive it" such may occur in some situations where
service by publication is permitted (id. at 502) and that the
determination must be made upon the facts and circumstances before the
court because "what might be inadequate notice in one kind of situation
will amount to due process in another" (id. at 503).

The facts and circumstances before this Court are distinguishable from the facts before the Court in the case of Safadjou v. Mohammadi relied upon by plaintiff's counsel (105 AD3d 1423, 964 NYS2d 801 [4 Dept.,2013]). In Safadjou v. Mohammadi
the Court permitted service by e-mail pursuant to CPLR 308(5); however,
in that case, the record established that the plaintiff and defendant
had been communicating by e-mail and, therefore, the Court found that
"plaintiff made the requisite showing that service by e-mail was
`reasonably calculated to apprise defendant of the pending lawsuit and
thus satisfie[d] due process'" (Safadjou v. Mohammadi, 105 AD3d 1423, 1425, 964 NYS2d 801 [4 Dept.,2013],citing Harkness v. Doe, 261 AD2d 846, 847 [4th Dept.,1999]). Unlike the facts and circumstances presented in Safadjou,
in the application before this Court plaintiff has failed to
sufficiently authenticate the Facebook profile as being that of
defendant and has not shows that, assuming arguendo that it is
defendant's Facebook profile, that defendant actually uses this Facebook
page for communicating. As such, plaintiff has not demonstrated that,
under the facts presented here, service by Facebook is reasonably
calculated to apprise defendant of the matrimonial action.

The act for divorce has a multitude of ancillary affects on the
rights and liabilities of parties. The Court must be scrupulous in
allowing service by a methodology most likely to give notice not only
are one's economic responsibilities and rights to pay and receive
maintenance and child support but rights to property, inheritance and
most importantly the Constitutional right to custody and visitation [see generally Troxel v. Granville, 530 US 57, 120 S.Ct. 2054 [2000].
If the standard for review of an agreement in any matrimonial action is
higher than that in a plenary action certainly the Court must be
satisfied that there is some semblance of due process notice (see generally Kessler v. Kessler, 33 AD3d 42, 818 NYS2d 571 [2 Dept.,2006]).

Upon careful review of the profile pages annexed by plaintiff, which
she purports to be defendant's profile, indicates that the profile has
not been updated since April 27, 2014.[1]
The Court further notes that while plaintiff's counsel contends that
plaintiff has communicated with defendant through Facebook the
plaintiff's affidavit is entirely silent regarding any alleged
communication with defendant through Facebook including any
representation regarding dates when she communicated with defendant or
that she communicated with defendant through this Facebook page. The
Court notes that plaintiff did not annex copies of any of the alleged
Facebook correspondence with defendant that she contends link him to
this Facebook profile. Contrary to plaintiff's assertions she has not
demonstrated that this profile is maintained by defendant and,
therefore, while substituted service by publication may be appropriate
under the facts and circumstances presented in the case at bar plaintiff
has failed to establish that service of the summons by Facebook to this
profile account would, under the facts as alleged here, be "reasonably
calculated" to put defendant on notice. Furthermore, assuming arguendo
that plaintiff had demonstrated this to be defendant's Facebook profile
she has not demonstrated that defendant continues to use this profile
currently since there is no indication that the profile has been used
since April 2014. The Court notes that there is no sworn statement by
plaintiff that she communicated with defendant through this Facebook
profile nor are copies of any such correspondence which may support
plaintiff's claim that the profile is maintained by defendant nor is
there any representation made regarding when any alleged communication
through Facebook took place. The only representation included in the
application is plaintiff's counsel's affirmation that plaintiff told him
that she communicates with defendant through this Facebook account.

Before the Court could consider allowing service by Facebook pursuant
to CPLR 308(5) the record must contain evidence that the Facebook
profile was one that defendant actually uses for receipt of messages.
The Court notes that anyone can create a Facebook profile using
accurate, false or incomplete information and there is no way, under the
application currently pending, for the Court to confirm whether the
profile proffered by plaintiff is in fact the defendant's profile and
that he accesses it (see Fortunato v. Chase Bank USA, N.A., No.
11 Civ 6608 (JFK), 2012 WL 2086950 [S.D.NY, June 7, 2012]). Granting
this application for service by Facebook under the facts presented by
plaintiff would be akin to the Court permitting service by nail and mail
to a building that no longer exists. For all of the foregoing reasons,
plaintiff's application for permission to serve the summons upon
defendant by Facebook is denied without prejudice.

This shall constitute the decision and order of the Court.

[1]
While certainly not dispositive the Court notes that the only
information listed on the profile is the name "Abdullah Alshalabi";
location of "Riyadh, Saudi Arabia"; seven (7) friends; and a profile
picture of a geographic location not of an individual. The Court notes
that plaintiff does not allege that she knows any of the "friends" to be
family or friends of the defendant."

Tuesday, January 17, 2017

The Americans with Disabilities Act (ADA) provides guidelines for what is necessary for organizations to provide accommodation to individuals with disabilities. While private clubs,religious entities and governments must comply with portions of the ADA,they are exempt from the ADA as it relates to public accommodation.

From Americans with Disabilities Act Title III Regulations, Part 36 Nondiscrimination on the Basis of Disability in Public Accommodations and Commercial Facilities (as amended by the final rule published on August 11, 2016):

"§ 36.102 Application.

...........

(e) Exemptions and exclusions. This part does not apply to any private club (except to the extent that the facilities of the private club are made available to customers or patrons of a place of public accommodation), or to any religious entity or public entity."

"Claimant initially worked for the employer as a welder. Following an
injury resulting in his extended absence from work, the employer
terminated claimant's employment in April 2013 for staffing reasons.
Shortly thereafter, in June 2013, claimant was rehired by the employer
as a boiler mechanic. He subsequently filed several grievances
contesting, among other things, the denial of a pay increase and
vacation leave. In addition, between February 2014 and April 2014,
claimant made several requests for leaves of absence for differing
reasons. The employer initially denied these requests, but ultimately
granted claimant an indefinite leave of absence on April 28, 2014.
Following an arbitration hearing, claimant signed a settlement agreement
under which he received a payment of $10,000 from the employer and
agreed to resign from his position effective May 1, 2014.

Thereafter, claimant filed an application for unemployment insurance
benefits. His application was initially denied on the ground that he was
disqualified from receiving benefits because he voluntarily left his
employment without good cause. Claimant requested a hearing and, at its
conclusion, an Administrative Law Judge sustained the initial
determination. The Unemployment Insurance Appeal Board, however,
reversed this decision and ruled that claimant was entitled to receive
benefits. The employer now appeals.

Under the circumstances presented, claimant's resignation and
acceptance of the $10,000 payment in settlement of outstanding
grievances and other claims constitutes a voluntary separation from
employment disqualifying him from receiving unemployment insurance
benefits (see Matter of Livingston [Hudacs], 210 AD2d 721, 722 [1994]; Matter of Mathison [County of Dutchess—Hudacs], 203 AD2d 832, 832-833 [1994],lv denied
83 NY2d 760 [1994]). There is no indication that claimant was forced to
accept the settlement agreement or that he was subject to disciplinary
action if he did not. Consequently, the Board's decision finding
claimant eligible to receive benefits is not supported by substantial
evidence and must be reversed. Although the employer maintains that
claimant is subject to a forfeiture of benefits based upon his willful
misrepresentation, this issue was not before the Board and is not
properly before this Court."

Thursday, January 12, 2017

OPINION: The credible evidence establishes that the claimant was separated from his
employment on April 28, 2014. The evidence fails to establish, however, that such
separation was voluntary. The claimant was not granted his previously requested and
denied three weeks of leave on April 28, 2014, nor had he asked to go on three weeks'
leave starting on that date. Rather, the claimant was involuntarily placed on an indefinite
leave without pay on April 28, 2014. He was not allowed to work on Tuesday, April 29,
2014, or thereafter, and his inquiries as to why he was then being placed on leave and
about returning to work went unanswered by the employer. This was an involuntary
separation for unemployment insurance purposes, and accordingly, the determination of
voluntary separation without good cause must be overruled. The claimant's signature on
the settlement agreement dated June 10, 2014, in which he purportedly resigned
effective May 1, 2014, and whatever he may have indicated to the Department of Labor
about the reason for his separation when and after he filed his claim are immaterial - as
he had already been separated involuntarily for unemployment insurance purposes on
April 28, 2014.

The record evidence reveals that TMR posted security-related jobs on a
secure website for its clients, who dictated the hours to be worked, as
well as the scope of services that were needed. The security officers,
after browsing through these postings, would request to work on any
particular job, which TMR ultimately awarded on a "first come, first
serve" basis. The security officers were free to select a job that they
wanted and were not prohibited from seeking jobs from TMR's competitors.
TMR did not provide the security officers with training or equipment
nor did TMR pay the security officers a set hourly rate. Furthermore,
once TMR placed the security officer with a client, TMR did not enter
into a contract with the security officer. While a security officer
could be in the middle of a continuing job for a client, he or she was
nonetheless free to leave at any point and work elsewhere. In addition,
if an issue arose with the security officer's performance, the client
dealt with the security officer directly, and TMR would be notified if
it needed to provide a substitute security officer. Inasmuch as the
proof of incidental control relied upon by the Board does not support
the conclusion that the security officers were employees (see Matter of Yoga Vida NYC, Inc. [Commissioner of Labor], 28 NY3d 1013, 1016 [2016]), under the circumstances of this case, the Board's decision must be reversed (see Matter of Chan [Market Force Info.—Commissioner of Labor], 128 AD3d 1146, 1146-1147 [2015]; Matter of Lee [Encore Nationwide Inc.—Commissioner of Labor], 127 AD3d 1399, 1399-1400 [2015]; Matter of Jennings [American Delivery Solution, Inc.— Commissioner of Labor], 125 AD3d 1152, 1153 [2015]; Matter of John Lack Assoc., LLC [Commissioner of Labor], 112 AD3d 1042, 1043-1044 [2013]; Matter of Best [Lusignan—Commissioner of Labor], 95 AD3d 1536, 1537-1538 [2012]).

Tuesday, January 10, 2017

OPINION: The credible evidence establishes that the company herein exercised
sufficient direction, supervision and control over the claimant to demonstrate an
employment relationship. In Matter of Concourse Ophthalmology Associates, PC, 60
NY2d 734 (1983), the Court held that whether an employment relationship exists within
the meaning of the unemployment insurance law is a question of fact; that no one factor
was determinative; and that an employment relationship could be found even if other
evidence in the record would have supported a contrary conclusion. In the case at hand,
the written agreement subjected him and any helpers or drivers he might use to drug and
alcohol testing; barred him from disclosing confidential information regarding the
company or its customers; and prohibited him competing with the company for 12 months
following termination of services. He was provided with company identification and was
required to use communications equipment that was compatible with the company's
system. His work was subject to deadlines. The company handled customer complaints.
Moreover, if customers did not pay the company, the claimant still got paid (See Matter of
Voisin, 134 AD3d 1186 [3d Dept 2015]; see also Matter of Garbowski, 136 AD3d 1079
[3d Dept 2016]). The fact that the claimant used his own vehicle and signed a written
agreement designating him an independent contractor is not dispositive (See e.g. Matter
of Kelly, 28 AD3d 1044 [3d Dept 2006]; Matter of CDK Delivery Service, Inc., 151 AD2d
932 [3d Dept 1989]).

The employer's reliance on Matter of Jennings, 125 AD3d 1152 [3d Dept 2015] is
misplaced. In that case, the claimant paid all of his expenses including tolls, whereas in
the case at hand, the claimant was reimbursed for some tolls. Moreover, in Jennings, the
employer did not impose any conditions on the way that claimant performed his work,
whereas in the case at hand, the written agreement provided conditions. Additionally,
deadlines were imposed for deliveries. Finally, in the case at hand, the company
restricted the claimant from competing with it.

As to the company's contention that its control over the couriers was mandated by
government regulations, e.g., the Department of Transportation regulations concerning
background checks and drug testing, the employer exercised or reserved the right to
exercise sufficient amount of supervision, direction or control above and beyond such
regulations (Compare Matter of Choto, 82 AD3d 1369 [3d Dept 2011]; Matter of Leazard,
74 AD3d 1414 [3d Dept 2010]; and Matter of Wannen, 57 AD3d 1029 [3d Dept 2008]). As
the company exercised sufficient supervision, direction and control over the claimant's
services to establish his status as an employee of the company, we conclude that the
company should be held liable for additional contributions.

DECISION: The decision of the Administrative Law Judge is reversed.
The employer's objection, that the claimant and all other persons similarly situated were
independent contractors, is overruled.

Friday, January 6, 2017

"The court must reject the petitioner's contentions. CPLR 2201
broadly empowers the court to grant a stay of proceedings "in a proper
case, upon such terms as may be just." The propriety of granting a stay
in any given case is limited only by "the Court's own sense of
discretion, prudence, and justice" (Matter of Joseph v Cheeseboro, 42 Misc 2d 917, 919 [1964, Greenfield, J.], revd on other grounds43 Misc 2d 702 [1964]).

Contrary to petitioner's contention, the RPAPL does not constrain the
court. Indeed, the provisions cited by petitioner (RPAPL 753) on their
face apply only to proceedings "to recover the possession of premises in
the city of New York" (RPAPL 753 [1]). A different section (RPAPL 751)
once incorporated provisions relating to discretionary stays "outside
the city of New York" (RPAPL 751 [4] [a]). The latter provisions,
however, were effective "only until September first, nineteen hundred
sixty-seven" (RPAPL 751 [e]). In any event, the provisions of section
751, like the provisions of section 753, literally apply only to stay
applications "before a warrant is issued" (RPAPL 751; see Errigo v Diomede, 14 Misc 3d 988, 991 [2007]; New York City Hous. Auth. v Witherspoon, 12 Misc 3d 899, 905 [2006]).

Accordingly, the court rejects petitioner's contention that the
court's authority is limited by the RPAPL. To the contrary, the court's
power to act is firmly grounded in CPLR 2201 as made applicable under
section 212 of the Uniform District Court Act (see Canigiani v Deptula, supra).

Thursday, January 5, 2017

"The court properly denied the mother's objection to the reappointment of the Attorney for the Children (AFC) (see Matter of Mills v Rieman, 128 AD3d 1486, 1487; Matter of Leichter-Kessler v Kessler, 71 AD3d 1148, 1149; Matter of Petkovsek v Snyder [appeal No. 6], 251 AD2d 1087, 1087-1088, lv dismissed in part and denied in part
92 NY2d 942). In making an appointment of an AFC, "the court shall, to
the extent practicable and appropriate, appoint the same attorney who
has previously represented the child" (Family Ct Act § 249 [b]).
Inasmuch as there is no support in the record for the mother's
contention that the AFC was biased against her, there was no reason for
the court to appoint a new AFC (see generally Matter of Kristi L.T. v Andrew R.V., 48 AD3d 1202, 1206,lv denied10 NY3d 716)."

Tuesday, January 3, 2017

Paragraph (a) of subdivision 3 of section 441 of the Real Property Law is now amended, in the hope of promoting consumer protection, by requiring real estate licensees to, upon the licensee’s initial renewal, have two hours of instruction particularly relating to the law of agency. Thereafter, such license renewal would require at least one hour of instruction in the law of agency, providing real estate professionals with continuing education to help ensure a full understanding by the consumer of the roles agency relationships play in real estate transactions.

" (a) No renewal license shall be issued any licensee under this article
for any license period commencing November first, nineteen hundred ninety-five unless such licensee shall have within the two year period immediately preceding such renewal attended at least twenty-two and one-half
hours which shall include at least three hours of instruction pertaining
to fair housing and/or discrimination in the sale or rental of real
property or an interest in real property, AT LEAST ONE HOUR OF INSTRUCTION PERTAINING TO THE LAW OF AGENCY EXCEPT IN THE CASE OF THE INITIAL
TWO-YEAR LICENSING TERM FOR REAL ESTATE SALESPERSONS, TWO HOURS OF AGENCY RELATED INSTRUCTION MUST BE COMPLETED, and successfully completed a
continuing education real estate course or courses approved by the
secretary of state as to method, content and supervision, which approval
may be withdrawn if in the opinion of the secretary of state such course
or courses are not being conducted properly as to method, content and
supervision. For those individuals licensed pursuant to subdivision six
of section four hundred forty-two-g of this article, in the individual's
initial license term, at least eleven hours of the required twenty-two
and one-half hours of continuing education shall be completed during the
first year of the term. Of those eleven hours, three hours shall pertain
to applicable New York state statutes and regulations governing the
practice of real estate brokers and salespersons. To establish compliance with the continuing education requirements imposed by this section,
licensees shall provide an affidavit, in a form acceptable to the
department of state, establishing the nature of the continuing education

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted."

Monday, January 2, 2017

"Effective January 1st 2017, examination of tinted or shaded windows will be required during motor vehicle inspections.

Section 375 (12-a) of the NYS Vehicle and Traffic Law does not allow a windshield or front side windows that are dark.

The windshield and front side windows cannot block more than 30% of the light.

Seventy percent or more of the light from the outside must pass through the window.

This law also applies to the rear window unless the vehicle has outside rear-view mirrors on both sides.

The mirrors must give the driver a full and clear view behind the vehicle.

Rear
side windows must also allow at least seventy percent of light from the
outside to pass through the window if the vehicle is classified as a

station wagon

sedan

hardtop

coupe

hatchback

convertible

A
vehicle falls into one of these categories if it is labeled “Passenger
Car” on the Federal ID label found on the left front door panel.

It
is illegal to sell, offer for sale, or install glass that does not
comply with this law. It is illegal to operate a vehicle with glass that
does not comply with this law.

NYS Health department regulations
specify that only the following medical conditions may be used to
justify an exemption from the limits on light transmittance. If you have
one of the medical conditions below that require you to have tinted
vehicle windows, you may request an exemption from the law using the Application for Tinted Window Exemption (MV-80W).

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/